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BUYING OR SELLING PROPERTY – WHAT ARE THE IMPLICATIONS OF THE LAW GOVERNING YOUR MARRIAGE?

Nov 6, 2019

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I recently had a client ask whether she could register a property in her name only, rather than jointly with her spouse, despite the fact that she was married in community of property. This prompted me to write this article, setting out in broad strokes the different marital systems available in South Africa and the way in which they influence property transactions.

The South African Deeds Registries recognise the following matrimonial systems:

  • Marriage in Community of Property
  • Marriage out of Community of Property (by way of an antenuptial contract, either including or excluding the accrual system)
  • Marriage according to Customary Law
  • Marriage according to Muslim rites
  • Marriage according the laws of a foreign country (any country other than South Africa) 

1. Marriage in Community of Property
Property will be registered jointly in both spouses’ names. However should the property be bequeathed to you in a will or be donated to you subject to a condition in the will or deed of donation respectively that such property is excluded from the joint estate and will be your sole and exclusive property,  then in that instance you will become the sole registered owner.Any property acquired while you are unmarried will automatically form part of the joint estate should you subsequently be married in community of property.  When you sell the property your spouse will have to consent to the sale and transfer of the property.

2. Marriage out of Community of Property (Ante Nuptial Contract concluded prior to marriage)
Both spouses can acquire immovable property separately and in their own names without the consent of the other party.  Spouses may also purchase property together as co-owners. Where the accrual system is applicable the property may form part of the accrual should the property not be expressly excluded from the accrual in the Ante Nuptial Contract and will be taken into account on dissolution of the marriage through death or divorce.

3. Marriage according to Customary Law
Both spouses can acquire immovable property separately and in their own names or they may purchase property together as co-owners provided such customary marriage was concluded before 15 November 2000.  If the customary marriage was concluded after the aforementioned date without the conclusion of an Ante Nuptial Contract then such marriage is deemed to be in community of property.

4. Marriage according to Muslim rites
Both spouses can acquire immovable property separately and in their own names or they may purchase property together as co-owners.

5. Marriage according the laws of a foreign country
Both spouses can acquire immovable property separately and in their own names or they may purchase property together as co-owners. However when the property is sold or mortgaged the spouse who is the registered owner will require the assistance of the other spouse.

 

Please feel free to contact us should you require further information and assistance.

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